Smith v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 8, 2013. (adw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
GARY L. SMITH
Civil No. 6:12-cv-06090
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Gary L. Smith (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying his application for a
period of disability and Disability Insurance Benefits (“DIB”) under Title II of the Act. The Parties
have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this
case, including conducting the trial, ordering the entry of a final judgment, and conducting all postjudgment proceedings. ECF No. 5.1 Pursuant to this authority, the Court issues this memorandum
opinion and orders the entry of a final judgment in this matter.
Plaintiff protectively filed his DIB application on March 10, 2008. (Tr. 11, 133). Plaintiff
alleges being disabled due to breathing problems and nerve damage (“left side of body numb”). (Tr.
161). Plaintiff alleges an onset date of October 1, 2006. (Tr. 133). This application was denied
initially and again upon reconsideration. (Tr. 49-50).
Thereafter, Plaintiff requested an administrative hearing on his application, and this hearing
The docket numbers for this case are referenced by the designation “ECF No. ____” The transcript pages
for this case are referenced by the designation “Tr.”
request was granted. (Tr. 58-70). This hearing was set for September 10, 2009, but Plaintiff was a
“no show” at this hearing. (Tr. 82-83). Plaintiff’s hearing was rescheduled to November 6, 2009,
but Plaintiff was again a “no show” at this hearing. (Tr. 101). Plaintiff’s hearing was finally
rescheduled to April 22, 2010, and Plaintiff appeared and testified. (Tr. 21-48, 109). This hearing
was held in Hot Springs, Arkansas. (Tr. 21-48, 109). Plaintiff was represented by Donald Pullen.
(Tr. 21-48). In addition to Plaintiff, Vocational Expert (“VE”) Dwight Turner also testified at this
hearing. Id. During this administrative hearing, Plaintiff testified he was fifty-three (53) years old.
(Tr. 26). Such an individual is defined as a “person closely approaching advanced age” under 20
C.F.R. § 404.1563(d) (2008). Plaintiff also testified he had graduated from high school. (Tr. 26).
On June 4, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s application for
DIB. (Tr. 8-16). In this decision, the ALJ determined Plaintiff met the disability insured status
requirements of the Act as of October 1, 2006 and continued to meet them through December 31,
2007. (Tr. 15, Finding 1). The ALJ determined Plaintiff had not engaged in Substantial Gainful
Activity (“SGA”) since October 1, 2006. (Tr. 15, Finding 2). The ALJ determined Plaintiff had the
following severe impairment: chronic obstructive pulmonary disease (“COPD”). (Tr. 15, Finding
3). The ALJ determined Plaintiff’s impairment did not meet or medically equal the requirements
of any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”).
(Tr. 15, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 12-16). First, the ALJ evaluated Plaintiff’s subjective complaints and found his claimed
limitations were not entirely credible. (Tr. 15, Finding 5). Second, the ALJ determined Plaintiff
retained the RFC to perform the following:
The claimant has a residual functional capacity for a wide range of light exertional
work. This limits him to work which requires him to push, pull, lift or carry no more
than twenty pounds occasionally, and ten pounds frequently, while sitting or
standing/walking up to six hours each during an eight-hour workday, with no
concentrated exposure to odors, gases or temperature extremes.
Id. at 6.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 15, Finding 7). The VE
testified at the administrative hearing on this matter. (Tr. 41-48). Based upon that testimony, the
ALJ determined Plaintiff’s PRW included work as a car salesman. (Tr. 15, Finding 7). The VE also
testified that, considering his RFC, Plaintiff remained capable of performing this PRW. Id. Based
upon this testimony, the ALJ determined Plaintiff was not disabled as defined in the Act at any time
from October 1, 2006 (alleged onset date). (Tr. 16, Finding 8).
Thereafter, on June 30, 2010, Plaintiff requested the Appeals Council’s review of the ALJ’s
unfavorable decision. (Tr. 7). The Appeals Council denied this request for review on June 6, 2012.
(Tr. 1-3). On July 6, 2012, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to
the jurisdiction of this Court on July 19, 2012. ECF No. 5. Both Parties have filed appeal briefs.
ECF Nos. 8-9. This case is now ready for decision.
In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2010); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
As long as there is substantial evidence in the record that supports the Commissioner’s decision, the
Court may not reverse it simply because substantial evidence exists in the record that would have
supported a contrary outcome or because the Court would have decided the case differently. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If, after reviewing the record, it is possible
to draw two inconsistent positions from the evidence and one of those positions represents the
findings of the ALJ, the decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d 1065,
1068 (8th Cir. 2000).
It is well-established that a claimant for Social Security disability benefits has the burden of
proving his or her disability by establishing a physical or mental disability that lasted at least one
year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel,
160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines
a “physical or mental impairment” as “an impairment that results from anatomical, physiological,
or psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382(3)(c). A plaintiff must show that
his or her disability, not simply his or her impairment, has lasted for at least twelve consecutive
months. See 42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses
the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently
engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)
whether the claimant has an impairment that meets or equals a presumptively disabling impairment
listed in the regulations (if so, the claimant is disabled without regard to age, education, and work
experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his
or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to
the Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
In his appeal brief, Plaintiff raises two arguments for reversal2: (A) the ALJ erred in
determining his impairments did not meet the requirements of Listing 3.00; and (B) the ALJ erred
in evaluating his subjective complaints. ECF No. 8 at 1-20. In response, Defendant argues
substantial evidence supports the ALJ’s finding that Plaintiff’s impairments do not meet or equal the
requirements of the Listings, and substantial evidence supports the ALJ’s credibility determination.
ECF No. 9. The Court will address both arguments Plaintiff has raised.
Plaintiff claims his respiratory impairments meet the requirements of Listing 3.00. ECF No.
8 at 9-16. However, Listing 3.00 does not provide an independent basis for meeting an Appendix
1 Listing. See 20 C.F.R. Part 404, Subpart P, Appendix 1. Instead, Listing 3.00 merely contains
general provisions that describe the acceptable testing methods for respiratory impairments. Id. The
following are actually the listed impairments: Listing 3.02 (Chronic Pulmonary Insufficiency), 3.03
(Asthma), 3.04 (Cystic Fibrosis), 3.06 (Pneumoconiosis), 3.07 (Bronchiectasis), 3.08 (Mycobacterial,
mycotic, and other chronic persistent infections of the lung), 3.09 (Cor pulmonale secondary to
Plaintiff also argues in the second part of his briefing (Pages 16 to 20) that the ALJ erred in assessing the
opinions of his treating physician. Plaintiff, however, does not explain which opinions the ALJ failed to consider.
Indeed, the only medical records Plaintiff cited in this portion of his briefing were from 2011, which is several years
after his insured status expired. Thus, the Court will not consider this conclusory argument.
chronic pulmonary vascular hypertension), 3.10 (Sleep-related breathing disorders), and 3.11 (Lung
Plaintiff has not indicated which of these listed impairments apply. ECF No. 9. Plaintiff has
also not demonstrated his impairments meet or equal the requirements of any of these listed
impairments. Id. Plaintiff has the burden of demonstrating his impairments meet or equal the
requirements of one of these listed impairments. See Cox, 160 F.3d at 1206. Because Plaintiff has
not met his burden, the Court will not address this argument further. See Vandenboom v. Barnhart,
421 F.3d 745, 750 (8th Cir. 2005) (rejecting “out of hand” the claimant’s conclusory assertion that
he met listings because the claimant provided no analysis of the relevant law or facts concerning
Plaintiff claims the ALJ erred in assessing the credibility of his subjective complaints. ECF
No. 8 at 16-20. In assessing the credibility of a claimant, the ALJ is required to examine and to
apply the five factors from Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) or from 20 C.F.R. §
404.1529 and 20 C.F.R. § 416.929.3 See Shultz v. Astrue, 479 F.3d 979, 983 (2007). The factors to
consider are as follows: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity
of the pain; (3) the precipitating and aggravating factors; (4) the dosage, effectiveness, and side
effects of medication; and (5) the functional restrictions. See Polaski, 739 at 1322.
The factors must be analyzed and considered in light of the claimant’s subjective complaints
Social Security Regulations 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929 require the analysis of two
additional factors: (1) “treatment, other than medication, you receive or have received for relief of your pain or other
symptoms” and (2) “any measures you use or have used to relieve your pain or symptoms (e.g., lying flat on your
back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.).” However, under Polaski and its progeny,
the Eighth Circuit has not yet required the analysis of these additional factors. See Shultz v. Astrue, 479 F.3d 979,
983 (2007). Thus, this Court will not require the analysis of these additional factors in this case.
of pain. See id. The ALJ is not required to methodically discuss each factor as long as the ALJ
acknowledges and examines these factors prior to discounting the claimant’s subjective complaints.
See Lowe v. Apfel, 226 F.3d 969, 971-72 (8th Cir. 2000). As long as the ALJ properly applies these
five factors and gives several valid reasons for finding that the Plaintiff’s subjective complaints are
not entirely credible, the ALJ’s credibility determination is entitled to deference. See id.; Cox v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). The ALJ, however, cannot discount Plaintiff’s
subjective complaints “solely because the objective medical evidence does not fully support them
[the subjective complaints].” Polaski, 739 F.2d at 1322.
When discounting a claimant’s complaint of pain, the ALJ must make a specific credibility
determination, articulating the reasons for discrediting the testimony, addressing any
inconsistencies, and discussing the Polaski factors. See Baker v. Apfel, 159 F.3d 1140, 1144 (8th
Cir. 1998). The inability to work without some pain or discomfort is not a sufficient reason to find
a Plaintiff disabled within the strict definition of the Act. The issue is not the existence of pain, but
whether the pain a Plaintiff experiences precludes the performance of substantial gainful activity.
See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
In the present action, the ALJ fully complied with Polaski. (Tr. 11-16). In his opinion, the
ALJ referenced Polaski and then noted several inconsistencies between Plaintiff’s subjective
complaints and his medical records, including the following: (1) despite his complaints regarding
his respiratory problems, Plaintiff “continues to smoke one and one-half packs of cigarettes daily
which exacerbates any breathing problems”; (2) even though Plaintiff claims he cannot afford
medical treatment, he has had the opportunity to receive treatment from Charitable Christian Clinic
and the emergency room and has been able to afford cigarettes and alcohol (a six-pack per weekend)
that could assist in defraying the cost of medication; and (3) Plaintiff is able to prepare food in the
microwave, do laundry, maintain a driver’s license, and “lift up to forty pounds before feeling pain
and becoming breathless.” Id. Further, the ALJ noted Plaintiff’s medical records did not support
his subjective allegations. Id. Considering these findings, the Court finds no basis for reversing the
ALJ’s evaluation of Plaintiff’s subjective complaints. See Renstrom v. Astrue, 680 F.3d 1057, 1067
(8th Cir. 2012) (holding “[b]ecause the ALJ gave good reasons for discounting Renstrom’s
credibility, we defer to the ALJ’s credibility findings”).
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
to Plaintiff, is supported by substantial evidence and should be affirmed. A judgment incorporating
these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 8th day of May 2013.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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